Yorkway Apartments, Inc. v. Dundalk Co.

Marbury, J., delivered, the opinion of the Court. This is a bill for specific performance, brought by the proposed vendor, the appellee here, on a contract to sell certain land in Dundalk to the appellant. In this contract, it is stated that the purchaser is desirous of erecting on the property “for residential purposes, groups of buildings, each group to consist of two or more buildings to be erected in a row side by side, and each building to contain four separate apartments, two on the first floor and two on the second floor.” There is a proviso that the purchaser is not obligated under the contract “unless, under the terms and provisions of the deed conveying the property to it, it, its successors and assigns, shall be permitted to erect on said property buildings of the type hereinbefore specified, each of such buildings being intended for occupancy by four families.” The property is to be conveyed by the appellee, subject to certain restrictions, covenants and conditions contained in deed which it received from the Bethlethem Steel Company in 1940. It is claimed by the appellant that certain clauses in that deed embody restrictions which will prevent it from constructing buildings of the type above set out, and, therefore, it declines to carry out the contract.

The Bethlehem deed provides that the land shall be used for residence purposes only, and no building of any kind whatsoever shall be erected or maintained thereon except dwelling houses and private garages. Exceptions are made for schools, churches, libraries, art galleries, museums and studios or buildings for recreative, educational, religious or philanthropic purposes, to be approved by the grantor. It is also stated that “detached and/or ⁶⁴⁹ semi-detached houses only may be erected and maintained on the plots fronting on Liberty Parkway; detached, semidetached and/or attached houses may be erected or maintained on plots fronting on other streets.” “Detached house” is defined as meaning a free standing dwelling, intended for occupancy by not more than two families. “Semi-detached house” is defined as one of a pair of dwelling units arranged side by side, separated only by a common wall, each intended for occupancy from basement to roof by one family. “Attached house” is defined as one of a group or row of three or more dwelling units arranged side by side, separated only by common walls, each unit intended for occupancy from basement to roof by one family. The land which the appellant is buying does not front on Liberty Parkway, but it is claimed that the sense of of the restriction is that only attached houses which come within the above definitions may be erected on plots fronting on other streets, and, therefore, the appellant cannot build the kind of houses it proposes on any of the streets within the tract it is buying.

We think the use of the land for the kind of two-story appartments proposed to be constructed by the appellant is a use for residence purposes. That was indicated in the case of Saratoga Building Co. v. Stables, Inc., 146 Md. 152 , 128 A. 270, 271 , where it was said: “The words ‘residence purposes’ are susceptible of being construed as including the erection of a residential apartment house, and in view of the conditions shown by the record, we think such a construction is reasonable and should be adopted.” The only remaining question is whether the statement that “detached, semi-detached, and/or attached houses may be erected or maintained on plots fronting on other streets” is a restriction on the erection of any other kind of dwellings on such